On The Left - Relations, not contracts

It's been inevitable ever since May 15th,
1991, when the Employment Contracts Act was passed. The
labour movement reeled at the attack on its power. Workers
suffered abusive contracts, expulsion of their unions from
workplaces, attacks on wages and conditions, and an
oppressive environment where it was clear that the boss was
the boss and challenging them would lead to very unpleasant
things. The unions were practically broken too - membership
plunged, and their job was made next to impossible by being
denied the right to access their members and workplaces. It
would have to be undone - and now, at last, it is.

A
somewhat melodramatic picture, really - but not far off the
truth. National has always had it in for unions and
unionism, and in the early 90's had the strength to neuter
organised labour via statute. That was and remains the
intention of the ECA. It breaches ILO conventions by not
encouraging collective bargaining, and it tilts the balance
of power in the workplace decisively in favour of employers.
Thus the low level of strike activity in the last decade,
and the public's indoctrination by the mass media to think
of unionism as an untidy, improper and basically inflexible
and dogmatic and evil force.

I'm now going to lapse into
the territory covered by students of "Management and
Employment Relations." Among other things, this discipline
provides a very useful set of tools for analysing employment
relations from varying perspectives. We'll call these
frames of reference and at the largest scale there are three
basic divisions. There is a unitarist frame of reference -
one which sees conflict as problematic. There is the
pluralist frame - one which accepts conflict as inevitable
and stresses the importance of the institutional structure
that is in place to mediate and resolve that conflict. And
finally, underlying and critiquing both is the radical or
marxist perspective.

The Employment Contracts Act was a
classic piece of unitarist legislation. It is based on two
assumptions: first, that the employment relationship is
simply a service contract and should be treated as such, and
second that conflict is pathological in the employment
relationship and that it should be suppressed. This led on
to a whole raft of views - for example, that unions should
be removed, that compulsory unionism was gone, that
individual contracts were the best way for equal employers
and employees to manage their relationship. Naughty unions
would simply disappear, because in this new, pure
environment, friendly workers and their kindhearted and
generous managers would just all get along.

If this all
sounds slightly like the Brady Bunch or some other
airy-fairy pile of feel-good hogwash, then that's simply
because it was. The unitarist perspective was implemented
after 97 years (1894-1991) of an explicitly pluralist
approach which recognised conflict and had an institutional
structure to ameliorate it. To some extent the ECA carried
this on - it retained the specialist employment court, and a
lower level employment tribunal, and it continued to allow
strikes and lockouts. But the overall thrust of that Act
was one that tried to pretend that conflict was caused by
unions. They therefore weren't recognised, or supported, or
encouraged.

What the Employment Relations Bill (ERB
hereafter) 2000 is about is twofold. In its philosophical
framework it is a return to the previous pluralistic
approach. The second theme is a new development in New
Zealand labour law, and that is the good faith requirements
that infuse the bill.

First, the pluralist approach. The
ERB explicitly recognises that there is a power imbalance in
the workplace. Employers have more power than workers. It
secondly recognises that the best way to allow workers to
address that power imbalance is not to give them power via
statute, but is rather to make it easier for them to
organise themselves collectively in the workplace. This is
an important difference from the old structures, which made
the union movement so dependent on statutory power (monopoly
coverage, compulsory membership and so on) that when it was
removed, they virtually collapsed. There's no danger of
that under this system. Unions are being given a modest
boost to their powers - but they will have to go out and
fight for gains for their members. Nothing is going to come
on a plate for unions from this new legislation.

There is
also, in the classic pluralist sense, a development of the
institutions designed to mediate conflict. A new
"Employment Relations Authority" will replace the legalistic
Employment Tribunal. Its decisions will be reached in an
informal way, quickly, and with the minimum of fuss. More
importantly, it will look at the substance of complaints and
problems - not merely the procedural correctness. Looking
at the substance of a query instead merely of its form is a
major advance which will assist in the speedier resolution
of employment grievances.

"Good faith" is a fascinating
development. Apparently an import from some North American
jurisdictions, it requires that negotiations be conducted in
a civilised way. According to some comments, you'd think
this was the end of the world, and the sky was going to fall
in. Personally, I can't see why making it a requirement
that parties deal with each other in good faith and not
mislead each other is a bad thing. It re-emphasises the
whole purpose of the bill, which is in Hon. Margaret
Wilson's words "[the new framework] is based on the
understanding that employment is a human relationship
involving issues of mutual trust, confidence and fair
dealing, and is not simply a contractual, economic
exchange."

Radicals or marxists would criticise the ERB
from the view that while it acknowledges conflict, it
doesn't actually address the fundamental structural power
imbalance between labour and capital which comes to the
surface in any employment relationship. There's a good
reason for that; in the current political climate in New
Zealand, an attempt to unleash (for example) trade unionism
and push it along a revolutionary path would very quickly
lead to massive political reversals for the elected
government.

So the ERB is a fairly moderate piece of
legislation, aimed at improving employment relations and
redressing the balance of power in the workplace to a small
extent. The fact that it is portrayed as otherwise in the
media indicates its symbolic significance - and that is
something nobody should underestimate. For the Left, it's a
redress of power which was stolen from workers in 1991. A
long overdue correction. For the Right, however, it's a
removal of a cherished plank of the "reform" programme of
the 80's and early 90's. The dark and evil unions are being
given some power, to do damage to the kindly employers'
interests, and interfere in the poor workers' lives.

I'll
leave it to you to decide. This debate will go on and on,
but I'm going to try and cut through the hyperbole the right
is addicted to on these issues and expose as much as I can
what their interests are - the continued removal of the
ability for workers to effectively organise.

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